No Adastral New Town Ltd v Suffolk Coastal District Council & Anor

This is a claim under Section 113 of the Planning and Compulsory Purchase Act 2004 seeking an order that part of the provisions of the defendant’s Suffolk Coastal District Council’s Core Strategy (CS) be quashed in so far as it is necessary to ensure that the allocation of housing in the East of Ipswich Plan Area can be reconsidered on a lawful basis. In particular, the claimant seeks the quashing in whole or in part of policies SP2 - Housing Numbers and Distribution, SP19 - Settlement Policy and SP20 - East Ipswich Plan Area (EIPA).

The concern of the claimant is that together, the challenged policies provide the strategic housing allocation for 2000 homes east of the A12, to the south and east of Adastral Park. The allocation site is also referred to as Area 4. As explained below Adastral Park is a site in use for employment purposes.

The claimant is No Adastral New Town Limited (NANT), a local residents action group opposed to the Area 4 allocation. The group has participated throughout the CS process. The first defendant is the local planning authority for the Suffolk Coastal district.

The second defendant is the Secretary of State for Communities and Local Government who has taken no active role in the proceedings. He expressed the view, by letter dated 13^th January 2014, that the local planning authority would be best placed to defend the adoption of the CS.

The EIPA is a policy area which was designated by the East of England Plan (the Regional Spatial Strategy (RSS) in force during the preparation of the CS). The East of England Plan obliged the defendant to plan for a minimum of 10,200 new homes in the district over the period 2001-2021 with about 3200 of those being located in the EIPA.

The CS will set the framework for development within the Suffolk Coastal district until 2027. Throughout the plan preparation period the housing chapter of the CS was based on the housing requirement of the East of England Plan. The RSS housing requirements ceased to apply upon its revocation on the 3^rd January 2013. Notwithstanding that, the inspector who conducted the examination into the CS and found that the CS was sound on all matters, subject to amendments and an early review of housing numbers in 2015.

Adastral Park is an employment site owned and occupied by BT plc. Area or Option 4 is to the south and east of that employment site. A main concern on the part of the claimant is the proximity of the allocation in the CS to the Deben Estuary Special Protection Area (SPA). SPAs and Special Areas of Conservation (SACs) are also known as Natura 2000 sites. They are a network of sites with the highest level of nature conservation protection in both the European and domestic context. The closest part of the allocated site to the Deben Estuary is just over 1 kilometre from the eastern edge of the Deben Estuary SPA.

The CS was prepared over a period of six and a half years. There have been numerous versions of the CS in draft form and accompanying sustainability appraisals (SA) and appropriate assessments (AA) as the plan process has proceeded, options refined and policy direction developed. There have been also various rounds of public consultation and numerous committee, cabinet and council meetings.

The CS was the subject of an independent examination before an inspector who held examination hearings between 23rd October and 15^th November 2012. The inspector issued a report on 6th June 2013 which confirmed that the CS was sound. On the 5^th July 2013 the council resolved to adopt the CS.

The claimant challenges the decision of the defendant on the following grounds:

The claimant sought to add grounds (ii) and (iv) at the substantive hearing. The grounds were so closely related to the original grounds of challenge and no prejudice was said to be suffered by the defendant who had prepared a skeleton argument dealing with them. In those circumstances I allowed the claim to proceed on all the grounds set out.

Section 15 of the Planning and Compulsory Purchase Act 2004 requires local planning authorities to maintain “a local development scheme”. The scheme is a plan on the part of each local authority for the preparation of local development documents which are either known as Development Plan documents (DPDs) or supplementary planning documents (SPDs). Together, they make up the Local Development Framework (LDF). The LDF comprises a folder of documents for delivering the spatial planning strategy for the area. The documents comprise a CS for delivering the spatial strategy and vision for the area where polices are location rather than site specific, a proposals section with a proposals map to cover site specific policies and proposals and area action plans for the key areas of change or conservation. The DPDs become, by virtue of Section 38(3) of the Planning and Compulsory Purchase Act 2004, the Development Plan for the area. Until the revocation of the RSS that was also part of the Development Plan.

Where a determination is to be made on a planning application if regard is to be had to the development plan that determination must be made in accordance with the Development Plan unless material considerations indicate otherwise: Section 38(6) Planning and Compulsory Purchase Act 2004.

Under section 19 of the Planning and Compulsory Purchase Act 2004 DPDs are to be prepared in accordance with the local development scheme. Subsection (5) reads,

“The local planning authority must also-

a)

carry out an appraisal of the sustainability of the proposals in each (Development Plan document);

b)

prepare a report on the findings of the appraisal.”

That is known as the sustainability appraisal (SA).

The process involves a submission by the Local Planning Authority of every Development Plan document to the Secretary of State for independent examination. Section 20(5) reads,

“(5)

The purpose of an independent examination is to determine in respect of the development plan document—

(a)

whether it satisfies the requirements of sections 19 and 24(1), Regulations under section 17(7) and any Regulations under section 36 relating to the preparation of development plan documents;

(b)

whether it is sound.”

The preparation of a Development Plan document is governed by Regulations made under Section 36 of the Planning and Compulsory Purchase Act 2004.

The CS was largely prepared under the Town and Country Planning (Local Development) (England) Regulations 2004 which were in force until April 5^th 2012. Regulation 7 of the 2004 Regulations provides that CS and area action plans must be in the form of Development Plan documents. Regulation 30 (1)(a) prescribes the SA report for the DPD as one of the documents to be sent to the Secretary of State for his consideration under Section 20(3) of the Planning and Compulsory Purchase Act 2004 for independent examination.

The Town and Country Planning (Local Planning) (England) Regulations 2012 came into force on the 6^th April 2012. Under Regulation 20 any person may make representations to a local planning authority about a local plan which the Local Planning Authority proposes to submit to the Secretary of State. Regulation 22 sets out a list of prescribed documents for the purpose of Section 20(3) of the Planning and Compulsory Purchase 2004 Act including the SA. The person appointed to carry out the independent examination under section 20 makes a recommendation to the Local Planning Authority and has to consider any representations made in accordance with Regulation 20. Under Regulation 25 the Local Planning Authority must make the recommendations of the person appointed and the reasons given by that person for those recommendations available to the public in accordance with Regulation 35. If asked to do so by the local planning authority the person appointed to carry out the examination must recommend modifications of the document that would make it one that satisfied the requirements of section 20(5)(a) and was sound. The recommendations made are binding on the Local Planning Authority. The Local Planning Authority may then adopt the Development Plan document as part of the Development Plan.

Section 113 of the 2004 Act enables a person aggrieved by a relevant document, which includes a development plan document such as a CS, to apply to the High Court on the grounds that

On a successful challenge a court may quash the relevant document in whole or in part or remit the document to a person or body with a function relating to its preparation, publication, adoption or approval. If the document is remitted the court may give directions as to action to be taken in relation to the document: S 113(7B).

Directive 2001/42 of the European Parliament and of the Council of 27^th June 2001 on the assessment of the effects of certain plans and programmes on the environment is known as the Strategic Environmental Assessment (SEA) Directive.

I set out the material parts of the SEA Directive below.

The SEA Directive has been implemented in domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633) (2004 Regulations). They govern the strategic environmental assessment of plans and programmes. They set out certain consultation bodies under Regulation 4, including English Nature (now Natural England). Under Regulation 5 “a responsible authority shall carry, or secure the carrying out of, an environmental assessment in accordance with Part 3 of these Regulations, during preparation of that plan or programme and before its adoption or submission to the legislative procedure”. Regulation 8 provides that the plan shall not be adopted before account has been taken of the environmental report and opinions expressed by the consultation bodies and public upon it.

Part 3 of the Regulations deals with environmental reports and consultation procedures. Regulation 12 deals with preparation of environmental reports. Regulation 12(2) and (3) read,

“(2)

The report shall identify, describe and evaluate the likely significant effects on the environment of— ”

(a)

implementing the plan or programme; and

(b)

reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme.”

(3)

The report shall include such of the information referred to in Schedule 3 of these Regulations as may reasonably be required, taking account of –”

(a)

current knowledge and methods of assessment;

(b)

the contents and level of detail in the plan or programme;

(c)

the stage of the plan or programme in the decision making process; and

(d)

the extent to which certain matters are more appropriately assess at different levels in that process in order to avoid duplication of the assessment.”

Regulation 13 deals with consultation procedures, it says,

“13.

(1)  Every draft plan or programme for which an environmental report has been prepared in accordance with Regulation 12 and its accompanying environmental report (“the relevant documents”) shall be made available for the purposes of consultation in accordance with the following provisions of this regulation. ”

(2)

As soon as reasonably practicable after the preparation of the relevant documents, the responsible authority shall—

(a)

send a copy of those documents to each consultation body;

(b)

take such steps as it considers appropriate to bring the preparation of the relevant documents to the attention of the persons who, in the authority’s opinion, are affected or likely to be affected by, or have an interest in the decisions involved in the assessment and adoption of the plan or programme concerned, required under the Environmental Assessment of Plans and Programmes Directive (“the public consultees”);

(c)

inform the public consultees of the address (which may include a website) at which a copy of the relevant documents may be viewed, or from which a copy may be obtained; and

(d)

invite the consultation bodies and the public consultees to express their opinion on the relevant documents, specifying the address to which, and the period within which, opinions must be sent.

(3)

The period referred to in paragraph (2)(d) must be of such length as will ensure that the consultation bodies and the public consultees are given an effective opportunity to express their opinion on the relevant documents.

(4)

The responsible authority shall keep a copy of the relevant documents available at its principal office for inspection by the public at all reasonable times and free of charge. ”

Schedule 2 sets out the information for environmental reports required under Regulation 12(3). It reads ,

“SCHEDULE 2 Regulation 12(3)

INFORMATION FOR ENVIRONMENTAL REPORTS

1.

An outline of the contents and main objectives of the plan or programme, and of its relationship with other relevant plans and programmes.

2.

The relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme.

3.

The environmental characteristics of areas likely to be significantly affected.

4.

Any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Council Directive 79/409/EEC on the conservation of wild birds and the Habitats Directive.

5.

The environmental protection objectives, established at international, Community or Member State level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation.

6.

The likely significant effects on the environment, including short, medium and long-term effects, permanent and temporary effects, positive and negative effects, and secondary, cumulative and synergistic effects, on issues such as—

(a)

biodiversity;

(b)

population;

(c)

human health;

(d)

fauna;

(e)

flora;

(f)

soil;

(g)

water;

(h)

air;

(i)

climatic factors;

(j)

material assets;

(k)

cultural heritage, including architectural and archaeological heritage;

(l)

landscape; and

(m)

the inter-relationship between the issues referred to in sub-paragraphs (a) to (l).

7.

The measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme.

8.

An outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information.

9.

A description of the measures envisaged concerning monitoring in accordance with Regulation 17.

10.

A non-technical summary of the information provided under paragraphs 1 to 9.”

Council Directive 79/409/EEC of the 21^st May 1992 on the conservation of natural habitats under wild fauna and flora (otherwise known as the Habitats Directive) is material to the current challenge. Articles 6(2) and 6(3) read,

“2.

Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

3.

Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”

The Directive, together with the Directive on Wild Birds, has been transposed into United Kingdom law by the Conservation of Habitats and Species Regulations 2010 (2010 Regulations) . Regulation 61 reads,

“61.

(1)  A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which— ”

(a)

is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and

(b)

is not directly connected with or necessary to the management of that site,

must make an appropriate assessment of the implications for that site in view of that site’s conservation objectives.

(2)

A person applying for any such consent, permission or other authorisation must provide such information as the competent authority may reasonably require for the purposes of the assessment or to enable them to determine whether an appropriate assessment is required.

(3)

The competent authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority specify.

(4)

They must also, if they consider it appropriate, take the opinion of the general public, and if they do so, they must take such steps for that purpose as they consider appropriate.

(5)

In the light of the conclusions of the assessment, and subject to Regulation 62 (considerations of overriding public interest), the competent authority may agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).

(6)

In considering whether a plan or project will adversely affect the integrity of the site, the authority must have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given.”

Chapter 8 of the Regulations deals with land use plans. Regulation 102 is entitled “Assessment of Implications for European sites and European offshore marine sites”. Where relevant it reads,

“102 (1)  Where a land use plan— ”

(a)

is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), and

(b)

is not directly connected with or necessary to the management of the site,

the plan-making authority for that plan must, before the plan is given effect, make an appropriate assessment of the implications for the site in view of that site’s conservation objectives.

(2)

The plan-making authority must for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority specify.

(3)

They must also, if they consider it appropriate, take the opinion of the general public, and if they do so, they must take such steps for that purpose as they consider appropriate.

(4)

In the light of the conclusions of the assessment, and subject to Regulation 103 (considerations of overriding public interest), the plan-making authority or, in the case of a regional strategy, the Secretary of State must give effect to the land use plan only after having ascertained that it will not adversely affect the integrity of the European site or the European offshore marine site (as the case may be).”

In early 2006 the defendant began work on the CS. It was to replace the Suffolk Coastal Local Plan. Until 2010 work was overseen by the local development framework task group (LDFTG). Their remit was to make recommendations to cabinet which in turn made recommendations to full Council which was the ultimate determining body. From 2010 the CS was dealt with by cabinet, a scrutiny committee and council. Throughout the process independent consultants were instructed to carry out the SAs (Suffolk County Council) and the AAs (The Landscape Partnership).

In March 2006 a Core Strategy ‘Visions and Objectives’ document was published for a 6 week period of public consultation. In June 2006 the Core Strategy SA scoping report was published for public consultation. Consultation took place also with statutory environmental bodies.

In February 2007 a CS ‘Issues and Options’ document was published for consultation between February and April of that year. No SA accompanied it for public consultation.

On the 11^th September 2007 the LDFTG considered the responses from public consultation. Options had been put to the public about housing numbers, and housing distribution in respect of which there were six potential options. The report to the LDFTG recognised the international wildlife importance of the Deben Estuary. The minutes record that a new document was to be prepared entitled the CS Preferred Options. It said that would be accompanied by a SA.

In December 2007 a SA of indicative preferred options was undertaken. That included an assessment of four possible locations for housing in the EIPA. The options considered were to the north east, the east (Kesgrave North and Playford), east (Kesgrave South and Martlesham) and east of the A12 at Martlesham. The options were appraised against various criteria one of which was to conserve and enhance bio-diversity and geo-diversity. The entry for east of the A12 Martlesham which became known as option 4 said,

“It may damage wildlife sites and habitats of protected species.”

The appraisal noted that the RSS specified that new housing development should be provided in the EIPA but left the precise location to the local development framework. The four options to be considered were then the subject of a short description and appraised, in terms of opportunities and constraints, in a table. At that time option 3, which was Kesgrave South and Martlesham, was the preferred option. Bio-diversity issues were not noted as a constraint in relation to option 4. The 2007 SA was not put out for public consultation until 2011.

In February 2008 the defendant published ‘Potential Directions for Strategic Housing Growth’. It identified 5 options in the area east of Ipswich. They were Area 1 - Ipswich boundary, Area 2 - north of the A1214, Area 3 - south of Kesgrave and Martlesham heath, Area 4 - south of old Martlesham east of the A12 and Area 5 - northwest of A14. The purpose of the document was to invite views on where new housing should be directed. The housing need to be accommodated through allocations had been assessed as around 1,000 houses. It was recognised also that most of that need would require to be accommodated a green field site or sites. No SA was prepared or accompanied the February 2008 document.

Each of the options for housing was appraised in the officer report against 21 criteria relating to sustainability. They had been taken from government guidelines, agreed between all Suffolk districts and been the subject of public consultation. One of those was bio-diversity. That contained various sub-criteria which were (i) whether the development or site was within 500 metres of identified internationally, nationally or locally designated sites and was unlikely to have a direct or indirect impact, (ii) whether the site was within 500m of an identified core biodiversity area, (iii) whether the development would impact upon identified nationally and locally important habitats and species, and (iv) whether the site was likely to require appropriate assessment. In considering how each of the criteria worked in practice, for biodiversity, it was noted that the generally accepted practice involved at least a 1 kilometre radius to consider the effects upon important species or habitats.

None of the documents before the LDFTG referred to the impact on the Deben Estuary although impact upon county wildlife sites was noted as part of the appraisal against bio-diversity and geo-diversity which received a double negative score. It is clear from the minutes of the discussion of members of the LDFTG that they were aware of the high bio-diversity interest in the area with several members talking about nature conservation interest of the Site of Special Scientific Interest and the Deben Estuary.

In September 2008 the first planning application by BT was submitted for development of the option 4 area. It was subsequently withdrawn.

On the 21^st October 2008 a report was taken to cabinet commenting on the delay to the local development scheme. That was occasioned by the need for public consultation, the need for the council to complete its evidence base and the need for sustainability and environmental appraisal.

At that time there was a CS Preferred Options draft which included a section on bio-diversity and geo-diversity. It noted that bio-diversity was important in Suffolk Coastal District because of the extent and range of sites and habitats in the district. The table of areas of wildlife of importance included the fact that there were four SPA sites within the district with an area of 7917 hectares. Paragraph 4.56 of the draft version is one to which the claimant attaches importance. It reads

“The council is duty bound to afford protection to areas designated for their wildlife and geo-diversity interest with the highest level of protection going to those areas of international and national importance. The issue in relation to the core strategy will be to ensure that sufficient regard is had to these areas when identifying levels and scales of new development to be accommodated throughout the district. Whilst some of the broad locations identified for development are included at this level, it is more of an issue to be addressed at the site specific allocation stage where development will, wherever possible, avoid such areas if impact is deemed to be significant and mitigation measures are impractical.”

The report by the cabinet member of the 21^st October 2008 to Cabinet on the CS contained a section entitled “sustainability appraisal”. That included the following,

“The council must demonstrate that the core strategy and the choices made in its production are sustainable. This will be particularly important when it is considered by an independent inspector later in the process. An appraisal needs to be carried out and in order to demonstrate objectivity this could be done independently. This is a lengthy process involving examining each aspect of the core strategy - objectives, strategic policies, and development control policies, directions of growth - and alternatives against sustainability criteria. Time has not permitted the appraisal of the attached document but Suffolk County Council, which is familiar with this type of work across Suffolk, has appraised the report to the Local Development Framework Task Group on the 1^st October 2008.”

The cabinet noted that the CS was not set in stone and was subject to alteration at a later stage. It approved the publication, with minor amendments, the draft CS for consultation.

In December 2008 the Core Strategy and Development Control policies Preferred Options was published for public consultation. That included option 4 as the preferred option for housing in what was then policy SP3. It outlined the other options which had been assessed and been out to public consultation as alternative options for directions of growth. The new housing allocation was then of 1050 houses.

A SA was published contemporaneously. That assessed all of the options which had been considered alongside option 4. Appendix 7 to the SA was a screening and scoping stage AA required under Regulation 48 of the Conservation (Natural Habitats &C) Regulations 1994 (the then current Regulations). Within that document the requirement to consult with Natural England was noted. The Deben Estuary SPA and the Deben Estuary SSSI were listed in the table of SACs and SPAs. Policy SP3 (Area East of Ipswich) had a negative impact. The commentary read,

“Any development is likely to bring additional pressure to any of the sites of European Interest, however the area near Martlesham identified as a “preferred option” could have particularly negative impacts upon the Deben Estuary SPA/SSSI. Site specific appropriate assessment will reveal any further issues.”

Policy SP18 on housing distribution registered a negative impact also with the commentary saying,

“Increased housing allocation in the more sensitive parts of the district will result in negative impacts. Site specific appropriate assessment will reveal any issues.”

On the 9^th of April 2009 BT submitted a further application for outline planning permission to develop land at Adastral Park and land to the south and east of Martlesham Heath for a mixed use development including employment uses, education provision, up to 2000 homes and public park and other areas of public open space. The planning application remains undetermined.

A SA was prepared of Revised Policies in June 2009. On option 4, now known as SP20, it recorded that there was additional concern about access to the countryside and proximity to the Deben SPA. Mitigation needed to take place through the consideration of site specific proposals including an AA. The other options which had been considered prior to the selection of the preferred option were not part of the SA.

An AA of June 2009 was prepared also. That included a comment from Natural England on the preferred options as follows,

“Any development is likely to bring additional pressure to any of the sites of European Interest. However, the area near Martlesham identified as a “preferred option” could have particularly negative impacts upon the Deben Estuary SPA/SSI.”

The AA was carried out on the basis of 1050 new houses at SP20.

Mitigation was discussed within the AA, including that for the Deben Estuary SPA. It recorded,

“it is understood that since the preferred option was published, proposals for development at Martlesham have come forward which will be over 1 kilometre from the Deben Estuary, together with new green space provision. In this case it is unlikely that visitor recreation activity would substantially increase on the foreshore of the Deben Estuary SPA at Martlesham, so there is expected to be no new high levels of disturbance to what is currently a little disturbed and a “refuge” area for SPA qualifying birds.”

A new country park was proposed as mitigation with a location in the Martlesham area being regarded as a good choice.

The report to the LDFTG meeting for the 16^th June 2009 considered responses to the Preferred Options consultation. It included reference, amongst the main issues raised, to the fact that, in the Ipswich policy area development east of the A12 would significantly impact upon the quality of the AONB and Deben Estuary.

The report included also the defendant’s response to the issues raised and a proposal to increase the housing numbers on SP20, “to create a self contained and sustainable community to include community, leisure, education and health facilities as well as employment. This might not be achieved if the number of new houses is restricted to 1000, particularly in respect of local education provisions.” It was noted that the achievement of creating a community that integrated with Martlesham might be enhanced with the provision of an Area Action Plan (AAP). That could address concerns such as the impact on wildlife and the AONB.

On the 7^th July 2009 the cabinet endorsed the recommendations of the LDFTG including that there be an increase in the housing allocation at SP20 to 2000 homes.

In September 2009 a document entitled “Housing Distribution - Updated Preferred Option 7-09” was published for consultation. That sought comments upon, amongst other matters, what was described as a substantial increase in the amount of new housing within the Ipswich policy area east of the A12 at Martlesham. The document referred to the Preferred Options report of December 2008 and noted that none of the 5 options east of Ipswich offered a perfect solution. The only option put out for further consultation in respect of the increased housing numbers was the increase to 2000 homes on the SP20 site. The document concluded ,

“Doubling the numbers of new houses at Martlesham provides the impetus/opportunity to create a stand alone community which is of a scale to trigger the need for wider community benefits, particularly a secondary school, and improved public transport provision. It will also increase the amount of developer contribution available to pay for necessary infrastructure. A larger scale development also has the opportunity to provide for a more meaningful set of mitigation measures which can be provided to limit the impact of development on the nearby AONB and nature conservation interests of the Estuary. The area has lower negative impacts on landscape quality and public amenity overall than other potential alternatives.

A SA was published at the same time. It described the change to SP20 as follows,

“The new policy is marginally less sustainable due to additions of land abutting Adastral Park being identified for development… there is the additional concern about access to the countryside and proximity to the Deben SPA. Mitigation will need to take place with a consideration of site specific proposals including an appropriate assessment.”

No other option was considered within the document apart from SP20.

On the 21^st September 2009 an AA was published. That was on the basis of the revised allocation of 2000 houses at SP20 up to 2025. It noted the possibility of cumulative impact from 2 major allocations that could cause an increase in visitor pressure on European Sites. They were the allocation East of Ipswich and that at Felixstowe and Trimley. It recorded that the allocation of 2000 houses at Martlesham could potentially cause problems to the Deben Estuary from increased visitor use causing significant disturbance to SPA birds. The amount of disturbance impact related to the location of housing, its distance from the SPA and ease of access to the SPA. It could not be ascertained that an allocation of 2000 new dwellings at Martlesham would, therefore, have no adverse effect upon the integrity of the Deben Estuary SPA. Provided that development was greater than 1 kilometre from a Natura 2000 site and that accessibility to green space provision was adequate it was unlikely that visitor recreation activity would substantially increase on the foreshore of the Deben Estuary at Martlesham. There was expected to be no new high levels of disturbance to what was currently a relatively undisturbed and refuge area for SPA qualifying birds.

Mitigation was required to ensure that the development delivered sufficient green space to accommodate the increased requirement for local recreational opportunities so that there were no impacts on the respective SPAs.

On the 21^st January 2010 the Community, Customers and Partners scrutiny committee met. It had taken over the role previously exercised by the LDFTG. It considered the responses to the September 2009 consultation exercise including concerns about impact on the Deben Estuary and areas designated as being of international importance for nature conservation interest.

Similar concerns were expressed when the cabinet considered the matters at its meeting on the 24^th February 2010. The report to that meeting considered objections to the revised distribution based on the increased impact on the Deben Estuary and AONB but concluded that the dispersal of additional housing numbers across the district would represent a worse scenario in terms of social and community benefits and traffic impact. Dispersal was not considered a realistic option to be pursued. The resolution of cabinet was to endorse the CS as presented and submit for examination.

On the 18^th of March 2010 the full council considered the CS for the first time and resolved to approve the CS for submission to the Planning Inspectorate for examination. Appendix 4 of the Report before full council summarised the responses to public consultation on housing distribution including the environmental impact of 2000 houses at Martlesham.

In June 2010 the draft CS was published as interim planning policy. That was accompanied by an updated SA which said of SP20,

“The latest version of this policy is also marginally more sustainable. This is because the policy now seeks to preserve and enhance environmentally sensitive locations in this extremely sensitive area. Previous iterations of the sustainability appraisal, site specific assessment and appropriate assessment have all highlighted the concerns over allocating housing east of the A12 at Martlesham due to the close proximity of the Deben Estuary RAMSAR/SPA. The latest version of this policy attempts to mitigate against these potential problems. However further measures are likely to be required to adequately preserve and enhance this environmentally sensitive area. The proposed area action plan will need to safe guard designated areas to preserve the wildlife and habitat on the estuary. A site specific appropriate assessment will also be required.”

The SP20 site was appraised against criteria but there was no appraisal of any of the other options which had been considered.

The defendant then decided not to submit the CS for independent examination as previously resolved in response to the decision on the part of the Secretary of State to revoke the RSS. Instead it resolved to commence work on a review.

In November 2010 a reviewed CS was published for consultation together with an SA update. On the 17^th January 2011 the scrutiny committee resolved to progress the CS in the light of its review. On the 17^th February 2011 the cabinet endorsed the recommendation of the scrutiny committee and resolved to progress the CS.

On the 8^th July 2011 the cabinet reviewed an update to the AA to accompany the CS and resolved to submit the reviewed CS for examination by an independent inspector accompanied by a SA and the AA. That resolution was endorsed by the council on the 27^th July 2011.

In August 2011 the SA of the Core Strategy and Development Management policies was published for consultation. Appendix 6 of the document summarises the options that the defendant had considered throughout the process of the CS documenting when decisions were made and setting out the reasons why those choices were made and why others considered were rejected.

Appendix 8 to the same document was the January 2010 SA which had been carried out internally as a reference document for the council. The further SA, which became the August 2011 SA, was produced by the county council. They used a final draft that they had produced on the 22^nd October 2008. On the 15^th December 2011 after the consultation process the CS, an updated SA and AA were referred back to full council which approved their content. It resolved that the pre-submission CS be published for pre-submission consultation and, thereafter, be submitted for examination by an independent planning inspector.

The council then published the pre-submission Core Strategy and Development Management policies for further consultation together with the AA and SA which included responses from statutory environmental bodies. Natural England, in an emailed letter dated the 11 November 2011, indicated that it had reviewed both the SEA and AA documents and were satisfied that they were adequate and their comments had been adequately incorporated.

The November 2011 SA dealt with the Martlesham Area Action plan and the proposed mitigation for the housing allocation. There was to be open space as part of the proposed housing development which needed to be available when people first started moving to the site. The creation of a country park at the Foxhall Tip site could occur in the longer term but it was important that there was some provision of a country park or other similar high quality provision from the outset of development.

In January 2012 a statement of consultation was published. Amongst other matters it dealt with whether the mitigation requirement to compensate for environmental damage was insufficient. It said,

“The mitigation identified has been put forward in the context of the evidence base and is considered as sufficient to reduce predicted adverse impacts to an acceptable level. A wide range of statutory consultation bodies, including NE, EA and EH have been fully engaged in the process, and have expressed their general satisfaction with the RCS proposals and subsequent mitigation. It is acknowledged that further detailed assessment will be required at the area action plan or planning application stage. This is normal practice.”

The pre-submission core strategy was submitted for examination in May 2012.

On the 6^th June 2012 the inspector appointed to hold the examination wrote to Mr Ridley, head of planning and coastal management with the defendant, asking him to deal with various matters. The inspector was concerned with the issues of alternatives and sustainability appraisal particularly after the judgments in Save Historic New Market Limited v Forest Heath District Council [2011] EWHC 606 and Heard v Broadlands District Council and others [2012] EWHC 344. The inspector asked also about issues arising from the appropriate assessment and about the country park which was proposed by way of mitigation.

The defendant responded on the 20^th June to the effect that there had been no requirement to consult on earlier alternatives when the defendant had decided to increase the allocation on SP20 from 1000 to 2000 units as the other options had been rejected and were no longer considered to be reasonable. However, despite that, consultation had been undertaken in January 2010 in respect of each of the original 5 sites that were considered by the defendant. The results of that SA were published and consulted upon before submission of the plan.

On the 4^th July 2012 David Locke Associates on behalf of BT submitted a revised Habitats Regulation assessment (HRA) as part of the planning application at Adastral Park. It expressed the view that the draft HRA provided certainty that the proposed development could be delivered without significant adverse impacts on the integrity of the Deben Estuary SPA RAMSAR site, the Deben Estuary SSSI or the Ipswich Heath SSSI. The measures proposed included on site green space in the order of 54.13 hectares of public open space, offsite mitigation measures including improvements to public rights of way encouraging movements away from the SPA and additional measures related to the Deben Estuary to offset any residual impacts.

The defendant referred to and relied upon that correspondence in its response to the inspector dated 6^th July. It considered that the package of mitigation measures could be developer funded. The BT correspondence was submitted to the inspector at the examination together with a subsequent letter dated the 30^th July from David Locke Associates, on behalf of BT, which dealt with mitigation measures onsite and offsite and their timing.

A revised appendix 6 to the SA of August 2011 was produced for the examination which set out the iterations of policies under the CS.

The inspector raised further questions in a note of the 12^th August 2012 to which both the defendant and NANT responded.

A statement of common ground on green infrastructure provision was agreed between Natural England, The Royal Society for the Protection of Birds, the Suffolk Wildlife Trust, Deben Estuary Partnership, the Landscape Partnership and the defendant. The claimant was not included amongst those parties but was able to comment and did comment upon the document. Natural England confirmed that it was happy with the detail provided in the CS. It noted that it had seen additional detail in relation to the non-determined mixed use planning application for development at Adastral Park. The AA was agreed as using the best and most up to date information available. The document contained certain agreed suggested modifications.

In November 2012 a joint note was submitted by counsel acting for the defendant and counsel acting for NANT on the implications of Cogent Land LLP v Rochford District Council [2012] EWHC 2542 for the inspector to consider.

On the 7^th December 2012 the scheduled hearings for the examination completed. The inspector confirmed that the defendant should proceed with the main modifications to the CS which should be subject to a SA.

On the 17^th December 2012 the inspector wrote to the defendant as the government had laid an order in parliament to revoke the East of England Regional Strategy. That order was to come into effect on the 3^rd January 2013. As a result, the inspector did not want the defendant to proceed with main modifications consultation until after responses on the RSS revocation had been assessed as there could be further implications for the main modifications.

On the 17^th January 2013 the council considered the revocation of the RSS and resolved that it was satisfied that the CS housing figure was appropriate, subject to a commitment to a review of the CS commencing with the publication of an issues and options report in 2015.

An addendum to the SA of November 2011 was published for consultation in January 2013. It sought views on the implications of the revocation of the RSS and the objectively assessed housing need figure of 11,000 which had been incorporated as a main modification to the CS.

On the 1^st February 2013 main modifications to the CS were published for consultation. The material part of main modification 22 which was to policy SP20 reads,

“The council will require the area action plan be supported by an appropriate assessment to meet the requirements of the Habitats Regulations. If the results of the appropriate assessment show that part of the strategy cannot be delivered without adverse impacts on the Deben Estuary SPA which cannot be mitigated, then the plan will only make provision for the level and location of development for which it can be concluded that there will be no adverse effect on the integrity of the SPA… Specifically, on land to the south and east of Adastral Park, strategic open space in the form of a country park or similar high quality provision will be required to mitigate the impact of development at this site and the wider cumulative impact of residential development on Deben and Orwell Estuaries and the Sandlings.”

The modifications were explained in the accompanying SA that included the following,

“The appropriate assessment (AA) for the core strategy (2011) states that a 1 kilometre separation of strategic allocations from Europeans sites is necessary, plus improvements to local green space for routine use. This needs to be provided in the area action plan and needs to be available when housing in the Adastral park area starts to be occupied so local routines are established from the outset that minimise this pressures on the Deben SPA. The AA suggested a new country park (or similar high quality provision) is needed to mitigate the cumulative effect of new housing provision in IBC and SCDC. As IBC proposed the provision of a country park within the northern fringe allocation, plus the modified policy here requires it for the Adastral Park development, provided both are available when houses are occupied, adverse impact on SPA designation should be avoided.”

Representations were made on the main modifications including by NANT. The council responded in a letter dated 2^nd May 2013.

On the 20^th May 2013 the council considered the responses to the February 2013 SA. The council resolved that it was satisfied, having reviewed the public comments, that the CS conformed with SEA Directive 2001/42/EC.

On the 6^th June 2013 the Inspector published his report into the CS. He said, at paragraph 23,

“There is no requirement under either the SEA Directive or the Regulations for an SA to be produced at each and every stage of local plan preparation. Although the SA of the alternatives was not available to councillors when the initial decision was made to support 2000 dwellings at Martlesham it was published at a later stage and it was open to the council to come to another view in the light of that information. Indeed there was a motion before the full Council, which was lost, that would have led to reconsideration of the options. Consultation had taken place on a SA that included the alternatives, and the responses would have been taken into account before the CS was submitted for examination. In that respect, the SA of the alternatives in the Eastern Ipswich Plan Area was capable of influencing the CS content.”

At paragraph 26, having considered the Cogent Land judgment, he continued,

“Irrespective of whether or not the council had heard at an earlier stage, the SAs accompanying the submitted CS and the main modifications had considered and evaluated reasonable alternatives.”

In paragraph 75 he dealt with the main modifications concerning the provision of a country park or similar high quality provision on the land south and east of Adastral Park. He said,

“While the detailed calculations of the specific scale of provision and the types of facilities to be included are matters for the area action plan or planning application, there is sufficient evidence that this element of the mitigation required by the AA can be achieved and is deliverable in phase with a new housing development.”

On the 5^th July 2013 the defendant resolved to adopt the CS.

The adopted core strategy and relevant management policies was duly published. The full text of the policies under challenge, namely, SP2, SP19 and SP20 are set out in the appendix to this judgment.

The claimant submits that the defendant acted unlawfully and in breach of the Directive and Regulations on two occasions :-

The claimant submits that there is a requirement for there to be an SEA at each stage of the Development Plan process which means that each stage of the Development Plan is to be accompanied by a SA. In support, the claimant refers to recital 4 of the SEA Directive which sets out the importance of environmental assessment to integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment because it ensures that such effects are taken into account during the preparation of the plan before its adoption.

Article 4 of the Directive sets out general obligations. Article 4.1 reads,

“The environmental assessment referred to in Article 3 shall be carried out during the preparation of a plan or programme and before its adoption or submission to the legislative procedure.”

Article 5 deals with the environmental report. Article 5.1 reads,

“Article 5

Environmental report

1.

Where an environmental assessment is required under Article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I.”

Article 5.2 says,

“The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.”

The information to be included in the environmental report on the likely significant effects on the environment is set out in Annex 1 to the Directive. It includes at (d),

“Any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to Directive 79/409/EEC and 92/43/EEC.”

The claimant relies upon R (on the application of Chalfont St Peter Parish Council) v Chiltern District Council [2013] EWHC 2073 at [29] where His Honour Judge Richard Foster sitting as a Judge of the High Court said,

“It is abundantly clear from the Directive and the SEA regulations that the sustainability appraisal must be carried out at every stage of the development of the core strategy and must also be carried out in respect of all reasonable alternatives under consideration.”

The claimant relies also upon Seaports Investment Limited’s Re Application for Judicial Review [2008] ENV.L.R.23 another case involving the relationship of the SEA Directive and Regulations in which Weatherup J said,

“[47] The scheme of the Directive and the Regulations clearly envisages the parallel development of the environmental report and the draft plan with the former impacting on the development of the latter throughout the periods before, during and after the public consultation. In the period before public consultation the developing environmental report will influence the developing plan and there will be engagement with the consultation body on the contents of the report. Where the latter becomes largely settled, even though as a draft plan, before the development of the former, then the fulfilment of the scheme of the Directive and the Regulations may be placed in jeopardy. The later public consultation on the environmental report and draft plan may not be capable of exerting the appropriate influence on the contents of the draft plan.”

And at [49],

“Once again the environmental report and the draft plan operate together and the consultees consider each in the light of the other. This must occur at a stage that is sufficiently "early" to avoid in effect a settled outcome having been reached and to enable the responses to be capable of influencing the final form. Further this must also be "effective" in that it does in the event actually influence the final form. While the scheme of the Directive and the Regulations does not demand simultaneous publication of the draft plan and the environmental report it clearly contemplates the opportunity for concurrent consultation on both documents.”

On that basis the claimant submits that the defendant had to undertake a SA at an early stage. Its failure to do so before it selected the preferred option in July 2008, in particular given the international importance of the Deben SPA, was a significant flaw in its decision making.

Although the defendant had woken up to the significance of the Deben Estuary by July 2009 when it decided to double the amount of housing its failure to consider reasonable alternatives at that stage meant that its decision was similarly flawed.

In that regard the claimant relies upon the judgement of Mr Justice Ouseley in Heard v Broadland District Council [2012] EWHC 344 (Admin) at [67] where he said,

“I accept that the plan-making process permits the broad options at stage one to be reduced or closed at the next stage, so that a preferred option or group of options emerges; there may then be a variety of narrower options about how they are progressed, and that that too may lead to a chosen course which may have itself further optional forms of implementation. It is not necessary to keep open all options for the same level of detailed examination at all stages. But if what I have adumbrated is the process adopted, an outline of the reasons for the selection of the options to be taken forward for assessment at each of those stages is required, even if that is left to the final SA, which for present purposes is the September 2009 SA.”

Reliance is placed on Save Historic Newmarket Limited v Secretary of State and Forest Heath District Council [2011] EWHC 606 at [17] where Collins J said,

“It is clear from the terms of Article 5 of the Directive and the guidance from the Commission that the authority responsible for the adoption of the plan or programme as well as the authorities and public consulted must be presented with an accurate picture of what reasonable alternatives there are and why they are not considered to be the best option (See Commission Guidance Paragraphs 5.11 to 5.14). Equally, the environmental assessment and the draft plan must operate together so that consultees can consider each in the light of the other. That was the view of Weatherup J in the Northern Irish case Re Seaport investments Ltd’s Application for Judicial Review [2008] Env. LR 23. However that does not mean that when the draft plan finally decided on by the authority and the accompanying environmental assessment are put out to consultation before the necessary examination is held there cannot have been during the iterative process a prior ruling out of alternatives. But this is subject to the important proviso that reasons have been given for the rejection of the alternatives, that those reasons are still valid if there has been any change in the proposals in the draft plan or any other material change of circumstances and that the consultees are able, whether by reference to the part of the earlier assessment giving the reasons or by summary of those reasons or, if necessary, by repeating them, to know from the assessment accompanying the draft plan what those reasons are. I do not think the Seaport case, which turned on its own facts including the lapse of time of over a year between the assessment and the draft plan, can provide any further assistance.”

The defendant submits that no SA was required in July 2008. The defendant submits that Article 6.2 of the SEA Directive requires public consultation on “the draft plan or programme and accompanying environmental report” (own underlining). Regulation 13(1) of the Environmental Assessment of Plans and Programmes Regulations 2004 only requires consultation in respect of every draft plan or programme for which an environmental report has been prepared.

The defendant submits that the council was the body with full decision making powers, not the LDFTG. Accordingly, there was no legal requirement to produce and consult upon a SA earlier than when a draft CS had been approved by the council.

The defendant relies upon Cogent Land LLP v Rochford District Council and Bellway Homes Ltd [2012] EWHC 2542 where at [113] Singh J recognised that although Articles 4 and 8 of the Directive required an environmental assessment to be carried out and taken into account “during the preparation of the plan” neither Article stipulated when in the process this must occur other than to say it must be before the plan’s adoption. Similarly while Article 6(2) of the Directive requires the public to be given an “early and effective opportunity… to express their opinion on the draft plan or programme and the accompanying environmental report” it does not prescribe what is meant by “early” other than to stipulate that it must be before the adoption of the plan. Singh J went on to say that although Weatherup J in the Seaport case had referred to the parallel development of the environmental report and draft plan so that when the draft plan became largely settled the fulfilment of the scheme of the Directive and Regulations may be placed in jeopardy that did not intend to lay down a general and absolute rule. Rather, he was stressing that whether or not the scheme of the Directive and 2004 Regulations was in fact breached would depend upon the facts of each case.

Neither the Regulations which transpose the Directive nor the Directive itself contain a definition of a draft plan. What is meant by that is, therefore, open to interpretation. However, that interpretation has to be in a way which, so far as possible, is compatible with the Directive.

Article 1 of the Directive provides,

“The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.”

Article 2(b) defines “environmental assessment” as follows,

“2(b) "environmental assessment" shall mean the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with Articles 4 to 9;”

As set out Article 4 sets out the general obligations. Article 4(1) contains a general requirement that the environmental assessment is carried out during the plan preparation and before the plan adoption.

Article 5 deals with the environmental report. I have set out Articles 5(1) and 5(2) above.

Article 6 deals with consultation and provides that the draft plan shall be made available to authorities with specific environmental responsibilities and that the public shall be given an early and effective opportunity to express their opinion under Article 6(2).

Guidance has been issued on the implementation of the Directive by the European Commission. It is not binding and, as Ouseley J commented in Heard v Broadland at [69], the guidance is not a source of law. However, it is of assistance in understanding the policy of the Commission in bringing forward the Directive.

The opening paragraph in the foreword reads,

“1.1.

Directive 2001/42/EC of the European Parliament and of the Council on the assessment of the effects of certain plans and programmes on the environment (‘the SEA Directive’)2 entered into force on 21st July 2001 and has to be implemented by Member States before 21st July 2004. It will greatly affect the work of many public authorities by obliging them to consider systematically whether the plans and programmes they prepare come within its scope of application and hence whether they need to carry out an environmental assessment of their proposals, in accordance with the procedures laid down in he Directive.

The guidance continues by considering each Article of the Directive. In relation to Article 3 it says,

“It is important to note that the plans and programmes defined in paragraph 2 should as a rule be subject to systematic environmental assessment.”

In dealing with the general obligation under Article 4(1) the guidance says,

“4.2.

As a matter of good practice, the environmental assessment of plans and programmes should influence the way the plans and programmes themselves are drawn up. While a plan or programme is relatively fluid, it may be easier to discard elements which are likely to have undesirable environmental effects than it would be when the plan or programme has been completed. At that stage, an environmental assessment may be informative but is likely to be less influential. Article 4(1) places a clear obligation on authorities to carry out the assessment during the preparation of the plan or programme.

Paragraph 5.7 of the guidance dealing with Article 5(1) reads,

“5.7.

According to Article 4(1) the environmental assessment shall be carried out during the preparation of a plan or programme and before its adoption or submission to the legislative procedure. The process of preparing the report should start as early as possible and, ideally, at the same time as the preparation of the plan or programme. The preparation of the report should normally have ended when the report is made available to authorities and the public in accordance with Article 6(1).”

Paragraph 7.4 of the guidance, which relates to the definition of “environmental assessment” in Article 2(b) reads,

“7.4.

This definition clearly states that consultation is an inseparable part of the assessment. Further, the results of the consultation have to be taken into account when the decision is being made. If either element is missing, there is, by definition, no environmental assessment in conformity with the Directive. This underlines the importance that is attached to consultation in the assessment.” (emphasis in original)

The wording of the domestic Regulations, read in the context of the Directive, make it clear that the environmental assessment of a draft plan should be an ongoing process. The objective is to ensure that the environmental effects of emerging policies can be taken into account while plans are actually being “developed”. To enable that to occur the process of preparing the environmental report should start, as the Commission says in its guidance, as early as possible, and ideally, at the same time as the preparation of the plan or programme.

That does not mean that there is an absolute rule that the plan and the environmental report proceed in parallel so that there is a requirement for simultaneous publication of the draft plan and environmental report. What it does mean though, in my judgement, is that there should be an integrated process whereby the environmental report assesses the emerging plan and the subsequent iteration of that plan has regard to the contents of the environmental report and public consultation on both documents. Whilst there is some flexibility in the process the objective of the Directive can only be met properly by taking into account an environmental report on the environmental effects of the policies in a draft plan as the policies develop. What is required may vary according to the plan being promoted and the stage that it has reached.

It follows that in this case, in my judgment, an environmental assessment was required at the early stages of development of the draft plan. Without that the decisions to be taken on the options for significant change would not be adequately informed. That means that in the consultation exercises that were undertaken by the defendant in 2006, 2007 and 2008 the consultation documents should have subject to a SA. Inevitably, such a document will be relatively rudimentary at the commencement of the process. Its content will increase as the draft plan develops.

The defendant submits that under its constitution full council was the decision making body for the purposes of the CS. The LDFTG was an internal working group of members assisted by officers. The draft CS went before full council on 18^th March 2010 when it was adopted as interim (albeit non statutory) planning policy. It was at that point that the appropriate decision making body first considered the draft plan and the SA/AA. There was no formal decision on a draft plan until that point. (defendant’s skeleton argument at paragraph 51).

Those submissions are entirely correct so far as they go. However, the fact is that by 18^th March 2010 there had been significant progress with the draft CS which had been through numerous iterations and consultation exercises. The LDFTG had sufficient delegated authority to direct and oversee the process until the scrutiny committee took over in January 2010. By that time decisions had been taken about the preferred nature of distribution of housing within the district, where that housing might be located and the extent of housing numbers on the preferred option site. Whilst it is quite right that those decisions were not fixed or final until the council considered them they were significant steps “during the preparation of the plan.” To hold that there was no requirement for such steps to be accompanied by a SA would not, in my judgment, be consistent with the scheme of the Directive and domestic Regulations which have, as part of their objectives, a requirement for co-ordinated and joint procedures during the course of plan preparation.

In this case, to hold that a significant part of the plan process which had been continuing for about 4 years prior to a decision by full Council did not have to involve any environmental assessment before March 2010 would be inimical with the concept of a continuing and co-ordinated process during plan preparation. What is required will vary according to the nature of the plan and how it is being progressed. I agree with the words of Singh J in Cogent (supra) that whether the scheme of the Regulations and Directive is in fact breached will depend on the facts of each case. But, in this case, there was a flaw in the early decision making process on the part of the defendant.

The matter, though, does not end there. In December 2008 the defendant published the Core Strategy and Development Control policies Preferred Option document with option 4 as the preferred option for 1050 houses. The latter document was accompanied by a SA and a scoping and screening report for an AA to be carried out under the 2010 Habitats Regulations. That clearly recorded the nature conservation significance of the Deben Estuary. The potential negative impact as a result of visitor pressure was clearly noted. Further consultation took place with that information clearly in the public domain.

When the results of the consultation exercise were considered by the LDFTG on 16th June 2009 their decision to proceed with the housing allocation on the Area East of Ipswich was thus a well and properly informed decision.

The claimant criticises the decision to increase the housing numbers to 2000 without considering the effect of that increase on the sites which had originally been considered as alternatives before the preferred option was chosen. Their very selection as alternatives by the defendant meant that they were reasonable alternatives. The claimant accepts that planning reasons were given for increasing the housing numbers but maintains that the decision making process was deficient because there was no consideration of the environmental implications. The defendant was not entitled to exclude considerations of reasonable alternatives and was required to consult in a more comprehensive fashion.

As the claimant accepts and, as is made clear in the City and District of St Albans v Secretary of State for Communities and Local Government [2009] EWHC 1280 the Directive and domestic Regulations envisage a process of decision making in which options can be progressively narrowed down and clarified. Article 5(2) of the Directive and Regulation 12(3) of the 2004 Regulations permit options to be considered and discarded so that they do not need to be revisited or thereafter appraised or to be taken into account again as alternatives to more detailed proposals made within a selected option. The defendant submits that by September 2009 the original alternative sites were non starters. The reason for the increase in the allocation was to provide significantly improved community facilities and a better opportunity to mitigate potential impacts on the countryside and estuary through properly managed open space provision as well as delivering greater funding opportunities for transport provision. The rationale for increasing the number of houses on the SP20 site, therefore, could not apply elsewhere and what had been reasonable alternatives as part of original site selection were no more.

The increase in the allocation on SP 20 to 2000 houses was, in my judgement, a material change in circumstance. It would have been better, therefore, to have consulted as part of the September 2009 consultation on the effect of the additional dwellings at the original alternative option sites. However, an assessment of the alternative option sites was carried out in January 2010 for 2000 houses on each of the original options 1-5 in the EIPA. All of the options were assessed as having strongly negative impacts for bio-diversity. The overall assessment recorded,

“The updated appraisal looking at 2000 houses suggests area 4 is very marginally the least sustainable however all areas will require new investment in infrastructure and generate similar concerns for cumulative impact upon Natura 2000 designations.”

The claimant contends that because of the 2 significant errors the entire SEA process was vitiated. As is clear I do not accept that submission for the following reasons:-

It is convenient to take both grounds relating to the Habitats Directive and Regulations together. It should be noted that there is also some considerable overlap between grounds one and two.

The claimant submits that the scheme of the Habitats Directive and Regulations is to put obligations on a member state to avoid impact on the network of Natura 2000 sites. As the defendant considered options for development without any consideration of that obligation it is in breach.

The general obligation to ensure that the Natura 2000 network is protected brings with it, the claimant submits, a triggering of the requirement for an AA at the earliest stage. That is particularly important in plan making.

Further, Articles 6(2) and 6(3) of the Habitats Directive carry with them an implied obligation, bearing in mind the significance of the Deben SPA, to look for alternative solutions.

The claimant relies upon the opinion of the Advocate General in Case C127/02 Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw at [54] where she said,

“Even after the conclusion of the normal authorisation procedure under Article 6(3) of the Habitats Directive the general obligation laid down in article 6(2) must apply to avoid deterioration or significant disturbance attributable to the implementation of a plan or project.”

At [60] the Advocate General said that article 6(2) lays down permanent obligations. That was confirmed by the decision of the Grand Chamber when it said [38]

“Article 6(2) of the Habitats Directive establishes an obligation of general protection consisting in avoiding deterioration and disturbances which could have significant effects in the light of the Directive’s objectives, and cannot be applicable concomitantly with article 6(3)”

The claimant further submits that the mitigation proposed for SP 20 is unlawful because:

The claimant accepts that Natural England was involved throughout the consultation process and that significant weight must attach to its views.

The first point to make is that accepted by the claimant, namely, that a decision maker should give the views of statutory consultees, in this case Natural England, as the appropriate nature conservation body, great weight. A departure from those views requires “cogent and compelling reasons”: see R (Hart District Council) v Secretary of State for Communities and Local Government [2008] EWHC 1204 at [49] and R (Akester) v Department for Environment, Food and Rural Affairs [2010] EWHC 232 at [112] and Shadwell Estates Limited v Breckland District Council [2013] EWHC 12 at [72].

Secondly, in considering the plan or project the competent authority is required to consider whether the project or plan as a whole, including such mitigation measures, if they are part of the project, is likely to have a significant effect on the SPA: see Hart (supra) at [76]. That means that it is permissible for a Local Planning Authority to have regard to proposed mitigation measures when deciding whether the plan or project is likely to have significant effects on the environment.

Thirdly, as the claimant accepts again, there is nothing in the Directive or Regulations which stipulates the time when an AA has to be undertaken or the form which it has to take, provided it is before the plan is given effect.

Fourthly, there is no express requirement under the Directive or Regulations to consider alternative sites whether reasonable or otherwise. That is unlike the position under the SEA Directive and the 2004 Regulations.

Whilst it is clearly good practice to carry out an AA at an early stage there is no absolute requirement to do so and it would not defeat the scheme of the Directive or Regulations if that were not done. As a result, a failure to conduct an AA at the beginning of the process cannot vitiate the ultimate decision provided the assessment is carried out before the plan takes effect and the AA does not demonstrate that there is likely to be any significant environmental effect.

The case relied upon by the claimants, namely, Case C-6/04 Commission v United Kingdom was about the inadequate transposition of the Habitats Directive into United Kingdom law. Transposition is not challenged in the current proceedings. It was, therefore, a very different and entirely distinguishable situation.

The claimant refers to the Cairngorms Campaign Limited and others v Cairngorms National Park Authority and others [2013] CSIH 65 on the basis that it raises a similar issue. It is due to be heard in the Supreme Court later this year. That may well be the case but the current judgment, which sets out the state of the law at present, which is what I have to consider does not assist the claimant, as it accepts.

The claimant refers as well to a document by the European Commission entitled “Assessment of Plans and Projects significantly affecting Natura 2000 sites”. In that there is a sub-heading “Alternative Solutions and Mitigation”. That refers (in paragraph 2.6) to project or plan proponents considering alternative solutions at the earliest stages of development but it makes it clear that to fulfil the requirements of the Habitats Directive it is for the competent authority to determine whether alternative solutions exist or not. That assessment should take place when the AA stage has concluded that adverse effects are likely.

In this case, with mitigation, the conclusion of the AA was that significant effects were not likely. That conclusion was agreed by Natural England. It cannot be said, therefore, that the defendant acted irrationally in adopting that view.

The AA for the CS required mitigation to be in place to secure the separation of development sites from areas of international nature conservation interests by over 1 kilometre. Improvements to open green space were required also.

What the eventually adopted policy SPA20 did was to set, as part of the strategy for the Martlesham, Newborne and Walderingfield Area Action Plan various criteria which included,

“vii)

The council will require further proposals to be supported by an appropriate assessment to meet the requirements of the Habitats Regulations. If the results of the appropriate assessment show that part of the strategy cannot be delivered without adverse impacts on designated European sites which cannot be mitigated, then the proposals will only make provision for the level and location of development for which it can be concluded that there will be no adverse effect on the integrity of the designated European nature Conservation site…. Specifically on land to the south and east of Adastral Park, strategic open space in the form of a country park or similar high quality provision will be required to mitigate the impact of the development at this site and the wider cumulative impact of residential development on the relevant designated European Nature conservation sites.”

The Inspector into the CS considered, as issue four, whether it made appropriate provision for the protection of the natural environment. At [75] he said,

“The council has proposed modifications to the plan (MM22) which identify a provision of a country park or similar high quality provision on the land to the south and east of Adastral Park, Martlesham. While the detailed calculations of the specific scale of provision and types of facilities to be included are matters for an area action plan or planning application, there is sufficient evidence that this element of the mitigation available by the AA can be achieved and is deliverable in phase with the new housing development.”

He considered also that the provision of wardening and visitor management facilities to cope with additional visitor pressure to the area would be funded through planning obligations or, in due course, through CIL. That aspect of the mitigation was capable of being delivered.

It would have been entirely artificial for the inspector to have disregarded evidence from BT on the extent to which their planning application could provide infrastructure including provision of open space. It was, therefore, entirely material to investigate BT’s proposals including that for open space. The fact that the provision would be co-extensive with what BT’s own development required did not affect its ability to contribute to open greenspace at a strategic level.

The fact that the inspector was familiar with the proposed modification to SP20 and was satisfied that it could be incorporated within a sound plan meant that he was content that the proposed mitigation was practical and sufficiently certain for the plan stage. The main modifications procedure involves another SA and a further round of public consultation. The public, therefore, had every opportunity to comment, including the claimant. The inspector chose not to re-open the examination. He must have been satisfied, therefore, that the proposed modification in light of the representations was sound.

The claimant makes no criticism of the inspector’s report for being irrational or, in itself, in error.

It is clear from the responses to the Freedom of Information request made by the claimant’s solicitors to Natural England that Natural England were engaged with the Core Strategy plan process from 2010. There is repeated correspondence by way of letter and email as well as evidence of meetings between Natural England and the defendant. The culmination of that process was that Natural England was satisfied with the level of detail provided by the defendant for a strategic plan AA. They indicated that they would also support whatever necessary and appropriate modifications to SP20 might be required.

Although the claimant asserts that Natural England carried out a volte face it is clear from a reading of the correspondence that they were involved in the plan making process throughout by the defendant and altered their initial position in the light of further evidence, including that within the BT planning application. They confirmed that they were satisfied that the final documents were adequate and that their comments had been adequately incorporated, as evidenced in their email of the 11^th November 2011, and a further email, on the 11^th July 2012, in connection with the proposed modifications and BT planning application. In those circumstances, the inspector was quite justified in coming to a decision that the mitigation was sufficiently certain for Development Plan purposes.

It follows that I reject the claimant’s submission in ground two that the AA was carried out too late. Equally, I can find no flaw, as alleged in ground three, in the inspector’s conclusion that the mitigation proposed for policy SP20 was sufficiently certain for Development Plan purposed.

Accordingly, I reject both grounds relating to the Habitats Directive and 2004 Regulations.

The claimant submits that it is impermissible to have a strategic policy dependant upon uncertain future delivery. Because the policy is contingent upon an AA being undertaken for the proposals on the SP20 site and, then, development is only allowed to the extent that mitigation will work, the claimant submits that the CS is unable to satisfy the housing requirement of putting 2000 houses in that particular location. As SP20 is a central part of the defendant’s strategy and there is no fall back it is an unrealistic policy for inclusion within a CS.

The claimant accepts that the position is similar to that in the case of Shaun Feeney v Oxford City Council [2011] EWHC 2699 where the adopted CS recognised the possibility of a future AA which was negative and made provision for what was to happen in that event. The court accepted that there was nothing wrong in that approach. An application for permission to appeal was rejected. The claimant submits that was wrong as a matter of law.

As set out above the inspector considered representations on the proposed modifications and concluded that what was being proposed by the defendant and agreed to by Natural England was deliverable. He concluded that,

“With the main modifications indicated strategy for the Eastern Ipswich plan area is soundly based and deliverable.”

In Feeny at first instance the judge held at [96] that,

“The Core Strategy as adopted itself recognises the possibility of future negative appropriate assessment and makes provision for what it to happen in that event. I accept that it is the case that the deliverability of the Northern Gateway CS6 policy as set out in the Core Strategy is conditional upon a future appropriate assessment. However, contrary to the claimant’s submission the Core Strategy does not represent an irrevocable commitment to the Northern Gateway project, in the form there set out. Rather, because of the qualifying wording, it represents a conditional commitment to that project. There is nothing wrong in approving something in principle which may not happen in the future if the condition is not satisfied…”

The inspector there specifically addressed the prospect that the Northern Gateway, a fundamental part of the strategy, might not proceed and that there might have to be a review of the CS, but did not consider this to be a reason not to approve the CS.

On the application for permission to appeal, Pill LJ said at [9] and [10],

“The scheme of the Directive does not involve enormously detailed studies proposed at this stage. There is no evidence as to precisely what studies might be carried out and what the results might be.

One cannot have a strategic plan based on an entirely failsafe position that the only developments that can be allowed in the strategic plan are those which however they are implemented, cannot possibly have an effect on an SAC. That, in my judgment, is not what the procedure requires.”

Yet that is what the claimant is seeking to ensure here: secure that a completely failsafe position applies at the moment of adoption. The claimant submits that decision was wrong as a matter of law. I disagree, for the same reasons expressed by Pill LJ whose decision I follow. What the defendant was seeking to do was to cover the position if the AA showed adverse impact on the designated European site which could not be mitigated. If that was to be the case then the only development which the defendant would permit was that up to a threshold when adverse impact would be caused. That provides a certain limit, albeit one that cannot be defined until the AA is carried out. In my judgement that is a perfectly justifiable land use policy.

The precise amount of housing on the SP20 site may well be uncertain until the AA has been completed but, as the council had committed to an early review of the CS starting in 2015, it had sufficient flexibility to carry out a further search across the district for any shortfall in housing numbers should one be occasioned as a result of any adverse conclusions of an AA. In that way the council’s strategy remained in tact and was deliverable at the time of adoption of the CS. There was also, as the claimant contended there should be, a plan B, through the early review, in place to take up any likely shortfall of housing on the SP20 site.

For those reasons this ground fails also.

For the avoidance of any doubt I have considered all of the authorities referred to by the claimant even if I do not set them all out in this judgment. I have concentrated on the main issues raised by the claimant and the main authorities that are pertinent to those.

I invite submissions as to the final order and costs.